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Second District Court in the Nation Holds That a Ringless Voicemail is a “Call” Under the TCPA

Back in July of last year, a Michigan Western District Court became the first court in the country to hold that a “ringless” voicemail—technology which “deposits” a voicemail into a consumer’s voice mail box without actually causing the phone to ring—was a “call” within the meaning of the TCPA.  Saunders v. Dyck O'Neal, Inc., 319 F. Supp. 3d 907 (W.D. Mich. 2018).  Following suit, the court in Schaevitz v. Braman Hyundai, Inc., No. 1:17-cv-23890-KMM, 2019 U.S. Dist. LEXIS 48906 (S.D. Fla. Mar. 25, 2019) has now become the second District Court to reach that same conclusion.

The question over whether a “ringless” voicemail is subject to the TCPA has been a hot topic for  some time now, but the court’s ruling in Schaevitz may mark the start of a trend amongst the lower courts.  Schaevitz comes to us in the form of an out-the-gates challenge by the Defendant brought as a motion to dismiss Plaintiff’s complaint.  Although the Defendant threw a number of legal challenges out in their motion, their primary argument was that a “ringless” voicemail does not qualify as a “call” under the TCPA.  The court, citing with agreement to the Saunders case, disagreed.  Breaking it down, the court cited six main reasons for its conclusion:

  1. The ordinary meaning of the word “call” is “to communicate with or try to get into communication with a person by a telephone,” which is what the user of a ringless voicemail system is trying to accomplish.
  2. Courts have consistently held that voicemail messages containing a prerecorded message are “subject to the same TCPA restrictions as traditional calls,” and that the statute “does not distinguish between calls that are picked up and calls that go to voicemail.”
  3. Although the TCPA is silent on text messages, the FCC has held that texts are also “calls” within the meaning of the TCPA.
  4. It doesn’t matter whether the consumer’s phone actually rings because the TCPA “does not require that the recipient of the call answer the phone or somehow be aware of the call.”
  5. A “ringless” voicemail is “no less intrusive than a standard voicemail or text message.”
  6. Construing a “ringless” voicemail as a “call” is consistent with Congress’s purpose in enacting the TCPA and protecting consumers from receiving unwanted and intrusive telephone calls.

Although the court’s ruling cited to half a dozen reasons why a “ringless” voicemail qualifies as a call, it really comes down to a “if it walks like a duck” approach to the issue.  The court ultimately concluded that a “ringless” voicemail—at least in the way it was described in Plaintiff’s challenged complaint—was similar enough to an actual call or text message which, together with the overall purpose of the TCPA, supported the conclusion that the technology should be treated as a “call” within the meaning of the TCPA.

While new and emerging technologies continue to make it easier to reach consumers, the Schaevitz ruling shows those technologies are not likely going to be a silver bullet for the TCPA.  Businesses utilizing these technologies should therefore be mindful of these risks, and be aware that a robust TCPA compliance infrastructure is still the best antidote for the risk of exposure (particularly on a classwide basis) that could result from TCPA violations. 

Copyright © 2023 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume IX, Number 87

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